Tennessee Attorney General opinion 03-165 December 23, 2003 now obsolete?

Yes. The attorney general issued an opinion nearly 7 years ago regarding the constitutionality of Tennessee's gun laws. As far as I know no one has asked the AG for a new opinion now that the Supreme Court of the United States came out with their decision in McDonald.

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202
December 23, 2003
Opinion No. 03-165
Constitutional Right to Keep and Bear Arms
QUESTIONS
1. To what extent does the Second Amendment to the United States Constitution limit
the power of the Tennessee Legislature to pass laws relative to the rights of the people to keep and
bear arms?
2. Does the Second Amendment to the United States Constitution guarantee an
individual right of the people to keep and bear arms, and, if so,
(a) what is the scope of the right, and
(b) does that guarantee preempt Tennessee state law?
3. To what extent does the Fourteenth Amendment to the United States Constitution
make the provisions of the Bill of Rights, including the Second Amendment, applicable to the State
of Tennessee?
OPINIONS
1. The United States Supreme Court has concluded that the Second Amendment does
not apply to the states. While the rationale underlying these opinions has recently been questioned,
they have not been overruled.
2. (a) United States Courts of Appeals are split on whether the Second Amendment to
the United States Constitution guarantees an individual right to keep and bear arms. The United
States Court of Appeals for the Sixth Circuit, of which Tennessee is a part, has concluded that the
Second Amendment does not guarantee an individual right. The Court of Appeals for the Fifth
Circuit, on the other hand, has concluded that the Second Amendment does guarantee an individual
right to bear arms, but that this right is subject to any limited, narrowly tailored specific exceptions
or restrictions for particular cases that are reasonable and not inconsistent with the right of
Americans generally to individually keep and bear their private arms as historically understood in
this country. The United States Attorney General has endorsed the Fifth Circuit’s reasoning but has
reiterated his intention of defending all current federal laws regulating firearms.
(b) As discussed in Question 1, the United States Supreme Court has concluded that the
Second Amendment does not apply to the states. If the United States Supreme Court decides that
the Second Amendment protects an individual right to keep and bear arms, and that the Second
Amendment applies to the states, then, under the Supremacy Clause, Tennessee law could not
unconstitutionally encroach on that right.
3. The United States Supreme Court has determined that several different provisions of
the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment.
It is conceivable that, if the United States Supreme Court finds that the Second Amendment does
protect an individual right to keep and bear arms, it would also find that the provision applies to the
states through the Fourteenth Amendment. But that Court has never overruled its conclusion that
the Second Amendment does not apply to the states through the Fourteenth Amendment.
ANALYSIS
1. Applicability of the Second Amendment of the United States Constitution to the
States
This opinion addresses several questions about the Second Amendment to the United States
Constitution. That provision states:
Right to bear arms. — A well-regulated militia, being necessary to the security of
a free state, the right of the people to keep and bear arms, shall not be infringed.
U. S. Const. Amend. 2. The United States Supreme Court has concluded that the Second
Amendment is a limitation only upon the power of Congress and the national government, and not
upon that of the states. Presser v. State of Illinois, 116 U.S. 252, 6 S.Ct. 580, 584, 29 L.Ed. 615
(1886); United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). Recently some courts
have questioned the continued validity of these opinions in dicta. See, e.g., Silveira v. Lockyer, 312
F.3d 1052, n. 17 (9th Cir. 2003), rehearing en banc denied, 828 F.3d 567 (9th Cir. 2003), petition
for certiorari pending; United States v. Emerson, 270 F.3d 203, n. 13 (5th Cir. 2001), rehearing and
rehearing en banc denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362,
153 L.Ed.2d 184 (2002). But until the Supreme Court directly overrules these opinions, they remain
binding. See, e.g., Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992).
2. Individual Right to Bear Arms
The next question is whether the Second Amendment to the United States Constitution
guarantees an individual right of the people to keep and bear arms. The United States Courts of
Appeals are split on this issue. The United States Court of Appeals for the Sixth Circuit, of which
Tennessee is a part, continues to hold that the Second Amendment guarantees the collective right
of the State to maintain a militia rather than an individual right to keep and bear arms. United States
v. Bournes, 339 F.3d 396 (6th Cir. 2003), petition for certiorari pending; United States v. Napier,
233 F.3d 394, 402 (6th Cir. 2000). By contrast, the United States Court of Appeals for the Fifth
Circuit recently found that the Second Amendment does protect an individual right to keep and bear
arms. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), rehearing and rehearing en banc
denied, 281 F.3d 1281 (5th Cir. 2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184
(2002). In that case, an individual challenged a federal statute making it a crime to possess a firearm
while subject to a court order prohibiting the use, attempted use, or threatened use of physical force
against an intimate partner or child. The individual asserted that, among other grounds, the statute
violated his Second Amendment right to keep and bear arms. The Court examined the text and the
history of the Second Amendment, and concluded that it “protects individual Americans in their right
to keep and bear arms whether or not they are a member of a select militia or performing active
military service or training.” 270 F.3d at 260. The Court also concluded, however, that this right
is subject to regulation. The Court stated:
Although, as we have held, the Second Amendment does protect individual rights,
that does not mean that those rights may never be made subject to any limited,
narrowly tailored specific exceptions or restrictions for particular cases that are
reasonable and not inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this country.
270 F.3d at 261 (emphasis in text). The Court examined the procedure under which restraining
orders were issued in Texas, and pointed out that it provided for notice and a hearing. The Court
also found that, under Texas law, the order could not issue unless the court concluded, based on
adequate evidence at the hearing, that the party restrained would otherwise pose a realistic threat of
imminent physical danger to the protected party. The Court stated:
In such a case, we conclude that the nexus between firearm possession by the party
so enjoined and the threat of lawless violence, is sufficient, though likely barely so,
to support the deprivation, while the order remains in effect, of the enjoined party’s
Second Amendment right to keep and bear arms, and that this is so even though the
party enjoined may not collaterally attack the particular predicate order in the . . .
prosecution [under the challenged federal law], at least so long as the order, as here,
is not so transparently invalid as to have only a frivolous pretense to validity.
270 F.3d 264.
Other circuits of the United States Court of Appeals, including the Sixth Circuit, have not
adopted the reasoning in Emerson. The United States Attorney General has endorsed the reasoning
of this case in a memorandum to all United States Attorneys dated November 9, 2001, and has since
adopted it in briefs opposing petitions for certiorari before the Supreme Court in the Emerson case
and in United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert denied, 536 U.S. 907, 122 S.Ct.
2362, 153 L.Ed.2d 153 (2002). At the same time, however, the Attorney General expressed the
Department’s intent to defend all existing federal firearms laws.
Emerson is not binding within this jurisdiction. Further, the United States Supreme Court
has found that the Second Amendment does not apply to the states. If the United States Supreme
Court finds that the Second Amendment protects an individual right to keep and bear arms, and that
the Second Amendment applies to the states, then, under the Supremacy Clause, Tennessee law
could not unconstitutionally encroach upon that right.
3. Application of the Bill of Rights to the States
The last question is the extent to which the Bill of Rights in the United States Constitution
applies to the states through the Fourteenth Amendment to the United States Constitution. The
United States Supreme Court has concluded that a number of provisions of the Bill of Rights apply
to the states through the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10
L.Ed.2d 844 (1963) (Establishment Clause of the First Amendment); New York Times Co. v.
Sullivan, 376 U.S. 254, 277, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964) (freedom of speech under the First
Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 684, 691, 5 L.Ed.2d 90 (1961), rehearing
denied, 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961) (Fourth Amendment); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (Sixth Amendment); Williamson
County Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 3111 n. 1, 87
L.Ed.2d 126 (1985) (Fifth Amendment). The reasoning behind these cases is that these rights are
part of the fundamental concept of liberty embodied in the Due Process Clause of the Fourteenth
Amendment. It is conceivable that, if the United States Supreme Court finds that the Second
Amendment does protect an individual right to keep and bear arms, it would also find that the
provision applies to the states through the Due Process Clause of the Fourteenth Amendment. But,
as discussed above, the United States Supreme Court has concluded in the past that the Second
Amendment does not apply to the states. These cases have not been overruled.

Really?

Still adhering to the translation of the 2A that it somehow applies to a collective, rather than an individual right, even after McDonald?

Am I missing something here, or is this Attorney General seriously ignorant?

That was issued in 2003. It is obsolete now that the Supreme court has interpreted the Amendment. I wonder when a Senator or Representative will have the courage to request a new opinion. Our AG is chosen by the Supreme Court Justices and serves an eight year term. His term is up in 2014.

I sent out an email this morning to all of the Tennessee members of the House of Representatives and Senate. I've been in contact with Jack Johnson who is my State Senator. I told him I would stand out in front of Legislative Plaza with my gun and a sign saying how he was an anti-gun Republican. His office has refused to even ask the AG for a new opinion regarding many gun issues I brought to them over the last few months. Apparently he doesn't believe I should be able to exercise my Second Amendment right to bear arms. He kept telling me how I hurt gun rights. Last I checked I can't hurt a God given right.

You go for it!

Be my guest and go out in front of the capital with your weapon. I understand you do not have a current permit. So by all means go for it.
Of course you have no idea the attention you are bringing upon yourself especially after filing a suit against the state or any local agency. Every thing you say in a public venue can be used against you during the proceedings because you made your thoughts public. Keep talking!

I hope my comments are used.

kwikrnu said:

I hope my comments are used.

Click to expand...

All of them?

I do believe they will be used. All you have to do is let the case go to trial regardless of any settlement offer.

Comments being used

I get the impression that your past comments were what lead to your permit being revoked and still being in limbo. Demand a trial by Jury and represent yourself.

The person who represents himself has a fool for a client!

It is an opinion, which would be followed by his office, and used for advise by the legislature.

It is in no way binding law.

This said, the opinion is based on SCOTUS rulings which may no longer apply. Fully sound in 2003.

AS for what the legislature will do, well, they wont be looking at this opinion. They may request a new one, or not. They are not required to, but do so to see if the bill they are writing will pass legal muster...

TN-treefrmr, it is not Kwik's postings on here which led to his privilege to carry being revoked. It is his actions where he placed himself, and the general public, in harms way, by forcing the police to act. This threat was direct confrontation, forcing police officers to decide whether or not he was an actual threat. He 1) Took an AK pistol, which, by design, looks like its evil twin, into a state park strapped across his chest, instead of holstered. 2) He had painted the tip of said pistol to make it look like a toy gun. He was detained until the pistol could be proven legal, and not its Felony carry counterpart. 3) He then carried, in his hand, a reproduction 1850's black powder revolver through the city of Belle Meade, to point out a city code, still on the books, but not enforced since the late 1800's, declaring the only way to carry within Belle Meade is with a certain design of pistol, in hand... Since these events were dealt with by no fewer than 3 different law enforcement groups, I bet these actions caused him to lose his privilege.

The only thing he did that I have a real issue with, is the painting the tip of his gun to look like a toy. :banghead:

Forgot to add the instances where he went into the Brentwood Public Library (free gun zone) and The Costco run, where he signed a membership agreement stating he would not bring firearms onto the property...

Those plus the actions previously stated, led to his permit being pulled.

Jack House:
You must have missed the memo that it is now considered "Tacticool" to make your real Urban Assault weapon look like an Airsoft toy! :shocker:

I Know

Technically what Kwik had was not a Urban Assault weapon. It was not technically a SBR or a Short Barreled Rifle. It was not even considered a PDW or Personal Defense Weapon.
It along with some other weapons are attempts to put a stock less version of a PDW/or SBR on the civilian market. Just as the MSAR STG 556, FN PS90, and FN FS2000 are civilian version of actual PDWs in semi auto with 16 or 18 inch barrels that are over 26 inches long.
The similarities are so close one can not tell the difference without tracking the serial number as one can illegally be converted into the other by attaching a folding stock. A pistol must be based on a pistol lower and use a pistol upper rather than a short barrel upper even though the barrel lengths are the same or the SBR might be shorter.
I also admit that I did not get the memo and did not paint my barrel tip orange.
There is some confusion by my using 31 rounds rather than 30 + 1 for the AK and The AR pistol as the 30 are the magazines I have now for my Sig P556 which uses standard AR mags. I understand that 60 round quad stack mags are being developed or that may be just a wishful thinking rumor that is going around.
Some might claim I am off topic here but as an explanation: All of Kwik's posts are off topic as they are not related to open carry of a properly holstered weapon!:idea:

Much to my dismay I must defend kwik, for once.

HvyMtl, we do not have to carry a firearm in a holster. You can legally strap it to your chest, or even tape it to your forehead. His other actions were likewise legal.

The main issue with what kwik did is the way he does it. just just runs around waiting for the cops to come to him, then he relies on his memory for his personal lawsuit. A smarter method would be to have someone a short distance away record the entire thing, with him acting reasonable. By just going off and doing it, he runs the risk of multiple cops lying, and severely damaging our rights in TN. Were he to plan these events, it could be a mixture of good ambassadorship (people generally side with the underdog, if the cops are abusing their powers it benefits him immensely for it to be on tape) and proof of the situation.

Of course, kwik isn't concerned with actually advancing our cause.

Somekid, it may not be required, by law, to have the firearm holstered. I was describing how he seems to have acted. Had the firearm been holstered, the reaction of the bystanders and police may have been different, and less dangerous...

On this forum, holstering is important to the owner/moderators.

My issues with Kwik seem to be the same as yours. The way he is doing this. Overly aggressive provocation, when other venues, safer to the community, the police, and himself, are easily available. He is trying to make $ by getting the police to react, so he can sue them.
He does not seem to plan for public safety when he plans his actions. Whenever you have LEO respond to your actions, you can place yourself, and the bystanders around you, in harm's way. He seems to not planned for this side of his actions, except for looking into body armor (for himself) and painting the tip of his real firearm orange, to look like a toy (and once the police realized it was a real gun, painted as a toy, that may have made the situation worse...)

Further, open carry in known (to him) illegal locations (Brentwood, TN Public Library, Costco) points further to the lack of his poor planning... and could have resulted in further unsafe situations...

I think you are right in the fact Kwik is not concerned with the furtherance of our cause.

I do have a Permit to carry, and abide by the law. I also try, by how I vote, and writing letters and talking to politicians, to expand the privilege (in this state it is still considered, by law, a privilege to carry) into the right it is supposed to be.

HvyMtl said:

Somekid, it may not be required, by law, to have the firearm holstered. I was describing how he seems to have acted. Had the firearm been holstered, the reaction of the bystanders and police may have been different, and less dangerous...

On this forum, holstering is important to the owner/moderators.

My issues with Kwik seem to be the same as yours. The way he is doing this. Overly aggressive provocation, when other venues, safer to the community, the police, and himself, are easily available. He is trying to make $ by getting the police to react, so he can sue them.
He does not seem to plan for public safety when he plans his actions. Whenever you have LEO respond to your actions, you can place yourself, and the bystanders around you, in harm's way. He seems to not planned for this side of his actions, except for looking into body armor (for himself) and painting the tip of his real firearm orange, to look like a toy (and once the police realized it was a real gun, painted as a toy, that may have made the situation worse...)

Further, open carry in known (to him) illegal locations (Brentwood, TN Public Library, Costco) points further to the lack of his poor planning... and could have resulted in further unsafe situations...

I think you are right in the fact Kwik is not concerned with the furtherance of our cause.

I do have a Permit to carry, and abide by the law. I also try, by how I vote, and writing letters and talking to politicians, to expand the privilege (in this state it is still considered, by law, a privilege to carry) into the right it is supposed to be.

Click to expand...

The holstered rule came after Radnor lake. The rule is a forum rule, nit a State law. I will carry as I see fit it will not be in accordance with OCDO regulations. Holstered or not law enforcement has no authority to detain or arrest if no other violation of law has occured. Law enforcement are required to know the law and ignorance is no excuse. In the case of radnor lake the LEO's admit there was no threat. They admit I was friendly. They admit I was held 2.5 hours. As a carrier of firearms I am not subject to arrest because I look dangerous. My lawsuits are going to change the way Tennessee law enforcement interact with legal carriers. They had better be good learners.

It is too bad you're anti-gun. By that I mean you obviously think my right to bear arms should be infringed.

No. I think you went about trying to create change in a manner which was unsafe.

That view still applies, as you have yet to inform us of any safety steps you took to prevent harm to the general public during the events.

The holster comment was to show people would have been less likely to feel threatened had the firearm been holstered...

As to why your permit was revoked, it is speculation, but it does seem to have been building up to the point the state responded. Not likely they would ignore Belle Meade, Metro, Brentwood, and their own Agents, complaining about the actions of a permit holder.
I do believe the sticking issue is your supposed carry in Brentwood Public Library. The carry in the Library event alone would be enough to get your permit revoked.

I do still question your intent. And I do still question whether or not it is furthering the cause of re-instilling the 2nd A, or being used as ammunition against bringing those rights back.

Hmm. I have to wonder about your rights, when you have acted in a manner where the safety of bystanders seemingly means nothing to you.
Had I been near you in the parking lot, when a shotgun armed officer, obviously under the influence of adrenaline, had the shotgun up and ready to shoot, I would have not been too happy. That would have been a direct threat to my safety, caused by your actions.
Yet, not once have you shown any regard about the safety of those around you when you pulled this stunt. Yes, stunt, as you were expecting reaction, as you carried a tape recorder to tape the reaction of the agents...

So. Again. What actions did you take to protect the innocent around you? Did you considering the safety of others before acting? What steps did you take to ensure their safety and the safety of the officers /agents who responded to your actions?

Sorry for the digression away from the original topic...

HvyMtl said:

No. I think you went about trying to create change in a manner which was unsafe.

That view still applies, as you have yet to inform us of any safety steps you took to prevent harm to the general public during the events.

The holster comment was to show people would have been less likely to feel threatened had the firearm been holstered...

As to why your permit was revoked, it is speculation, but it does seem to have been building up to the point the state responded. Not likely they would ignore Belle Meade, Metro, Brentwood, and their own Agents, complaining about the actions of a permit holder.
I do believe the sticking issue is your supposed carry in Brentwood Public Library. The carry in the Library event alone would be enough to get your permit revoked.

I do still question your intent. And I do still question whether or not it is furthering the cause of re-instilling the 2nd A, or being used as ammunition against bringing those rights back.

Hmm. I have to wonder about your rights, when you have acted in a manner where the safety of bystanders seemingly means nothing to you.
Had I been near you in the parking lot, when a shotgun armed officer, obviously under the influence of adrenaline, had the shotgun up and ready to shoot, I would have not been too happy. That would have been a direct threat to my safety, caused by your actions.
Yet, not once have you shown any regard about the safety of those around you when you pulled this stunt. Yes, stunt, as you were expecting reaction, as you carried a tape recorder to tape the reaction of the agents...

So. Again. What actions did you take to protect the innocent around you? Did you considering the safety of others before acting? What steps did you take to ensure their safety and the safety of the officers /agents who responded to your actions?

Sorry for the digression away from the original topic...

Click to expand...

Open carry is not "unsafe". Since open carry is not "unsafe" I did not and am under no obligation to make it more safe.

Holstered or slung is the same. There is no requirement in Tennessee to holster a handgun.

The suspension was illegal and I will fight that after I win my case against the State.

The permit was suspended upon request by the Belle Meade police. I will address that in my 1983 suit against them.

I carry a tape recorder to protect my rights.

The Radnor lake rangers admit that no one was threatened at the lake when I carried. In fact, the first ranger was armed and he let me leave and never drew his handgun.

So. You painted the tip orange, and looked into body armor for yourself, and carried a tape recorder, and did not think one safety thing for those around you?

The right to carry is to protect you, your family, friends and the general public. You seem to keep forgetting the general public in your thought process...

HvyMtl said:

So. You painted the tip orange, and looked into body armor for yourself, and carried a tape recorder, and did not think one safety thing for those around you?

The right to carry is to protect you, your family, friends and the general public. You seem to keep forgetting the general public in your thought process...

Click to expand...

I think everyone should own body armor and carry a voice recorder. I'm under no obligation to protect the general public. It is an individual responsibility which has been limited by unconstitutional laws.

I don't see how he has any obligation to provide for the safety of people who might be standing near him when he gets shot at. That would be like blaming the owner of a store that was getting robbed, because you got hurt in the process.